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Mental Health - Consent and Capacity Board (CCB) (2). M.R. v. Mishra
In M.R. v. Mishra (Ont CA, 2025) the Ontario Court of Appeal considered a Capacity and Consent Board appeal, here where the issue was mootness:[1] The appellant appeals from the order of the Superior Court upholding the decision of the Consent and Capacity Board that he lacked capacity to consent to treatment.
[2] The respondent has filed a motion to adduce fresh evidence and argues that the appeal is moot. The fresh evidence discloses that the appellant was found capable of consenting to treatment in July 2024, and has maintained capacity to consent to treatment since that date.
[3] The appellant argues that the appeal is not moot, and also that the appeal raises issues of broader impact under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched A.
[4] The appeal is moot. The relief sought by the appellant in the appeal is a declaration that he has the capacity to consent to treatment. As there is no dispute that he currently has the capacity to consent to treatment, there is no longer a live issue in the appeal. This case is indistinguishable from Adsett v. Labelle, 2024 ONCA 366.
[5] Further, we are not persuaded that this appeal raises any issues of broader importance that would warrant the court exercising its discretion to hear a moot appeal. . Naus v. Kennedy
In Naus v. Kennedy (Ont CA, 2025) the Ontario Court of Appeal considered a (second) appeal, this from "an order of the Superior Court of Justice confirming a decision of the Consent and Capacity Board (the “Board”) that he is incapable of consenting to treatment and that he should be subject to a community treatment order requiring him to take antipsychotic medication".
Here the court notes a common situation with treatment appeals in this field, that of the issue becoming moot due the lifting of, or changes in, the impugned treatment regime or capacity assessment:[31] The finding of incapacity is moot because Mr. Naus is no longer being treated with antipsychotic medication and a new finding of incapacity specific to new treatment would have to be made before Mr. Naus can be treated again without his consent. As this court explained in Kozoubenko v. Gosk, 2023 ONCA 802, at para. 22, “a person’s capacity to consent to treatment is time and treatment specific. The [Health Care Consent Act] provides for a presumption of capacity and recognizes that capacity is assessed with respect to a particular treatment and may fluctuate over time: ss. 4(2) and 15.” Accordingly, Mr. Naus is now presumed capable, and “whether he has or lacks capacity to consent to any proposed treatment will have to be assessed at the time the treatment is recommended”: Kozoubenko, at para. 22.
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